Cdp Real Estate Advisory India ... vs ---
2012 Latest Caselaw 5401 Del

$~7
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Judgment:11.9.2012

+             COMPANY PETITION NO. 523 OF 2010
      IN THE MATTER OF THE COMPANIES ACT, 1956 AND
IN THE MATTER OF SECTIONS 391 TO 394 READ WITH OTHER
APPLICABLE PROVISIONS OF THE COMPANIES ACT, 1956 AND
IN THE MATTER OF SCHEME OF AMALGAMATION OF:
CDP REAL ESTATE ADVISORY INDIA PRIVATE LIMITED
                  ...Transferor Company/ Applicant Company-I

                                WITH
SITQ INDIA PRIVATE LIMITED
                  ...Transferee Company/ Applicant Company-II

                    Through:   Mr.Gyanendra Kumar, Advocate for the
                               applicants.
                               Mr.H.S.Parihar, Advocate .
                               Mr.Rajiv Bahl, Advocate for Official
                               Liquidator .
                               Mr.K.S.Pradhan, Dy. Registrar of
                               Companies.
       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1. This Second Motion petition has been filed under Sections 391 to

394 of the Companies Act, 1956 (for short 'Act') jointly by the

Transferor and Transferee Companies seeking sanction of the Scheme of

Amalgamation (for short 'Scheme') of CDP Real Estate Advisory

Private Limited (the Transferor Company) with SITQ India Private

Limited (the Transferee Company).

2. The registered offices of the Transferor and Transferee

Companies are situated at New Delhi, within the jurisdiction of this

Court.

3. The details of the Transferor and Transferee Companies including

their date of incorporation, their authorised, issued, subscribed and paid

up capital have been mentioned in the Petition. Copies of the

Memorandum of Association, Articles of Association as well as audited

annual accounts of the Transferor and Transferee Companies have been

placed on record. The Scheme has been annexed as Annexure A.

4. The Petitioner Companies had earlier jointly filed C.A. (M) No.

200 of 2010 seeking directions of this Court for dispensation of

meetings of its equity shareholders and creditors. The Petitioner

Companies had stated that they do not have any creditors, whether

secured or unsecured. Vide order dated November 15, 2010, this Court

allowed the application and dispensed with the requirement of

convening meeting of the equity shareholders and creditors of the

Transferor and Transferee Companies.

5. The Transferor and Transferee Companies/ Petitioner Companies

thereafter have jointly filed the present Petition under Section 391 read

with 394 of the Act seeking sanction of the Scheme. Vide order dated

December 20, 2010, this Court directed that notices be issued to the

Regional Director (Northern Region) and the Official Liquidator

attached to this Court. Citations were directed to be published in the

Statesman (English, Delhi Edition) and the Jansatta (Hindi, Delhi

Edition) in accordance with Rule 80 of the Companies (Court) Rules,

1959. The newspaper cuttings, in original, containing the publication of

citations alongwith copies of notices sent to the Regional Director

(Northern Region) and the Official Liquidator have been filed by the

Petitioner Companies on March 30, 2011.

6. Pursuant to the notices issued, the Official Liquidator sought

information from the Petitioner Companies. Based on the information

received from the Petitioner Companies, the Official Liquidator has

filed his report wherein he has stated that he has not received any

complaint against the proposed Scheme from any person/ party

interested in the Scheme in any manner till the date of filing of this

report. The Official Liquidator has further stated in his report that the

affairs of the Transferor Company do not appear to have been conducted

in a manner prejudicial to the interest of its members or to public

interest as per the second proviso of Section 394 (1) of the Act.

Accordingly, the Official Liquidator has not expressed any objection to

the proposed Scheme.

7. In response to the notices issued in the Petition, the Regional

Director (Northern Region), Ministry of Corporate Affairs has filed his

Affidavit dated January 16, 2012. Relying on Clause 10.1 of the

Scheme, he has stated that all the employees of the Transferor Company

shall become the employees of Transferee Company without any break

or interruption in their services upon sanctioning of the Scheme by the

Court. The Regional Director in para 4 of his Affidavit dated January

16, 2012 has raised concerns regarding the Transferor Company's buy-

back of 10,000 shares at par in the year 2009 while having allotted

93,906 equity shares of Rs 10/- each to 9197-6431 Quebec Inc., Canada

and 1 equity share of Rs 10/- each to SITQ Mauritius Advisory Services,

Mauritius, at a premium of Rs 253/- per share.

8. In response to the report filed by Regional Director, the Petitioner

Companies filed a reply affidavit on March 05, 2012 wherein they stated

that (a) the participation by the exiting shareholders pursuant to a buy

back was based on a valuation of the Transferor Company in accordance

with law; (b) The participation by the exiting shareholders was a

voluntary act where they participated in the buy-back as offered by the

Transferor Company to all the shareholders; (c) The investment by

9197-6431 Quebec Inc., Canada and SITQ Mauritius Advisory Services,

Mauritius was made as a part of further investments in a group entity

where paying of a higher premium would not impact either the

shareholders or the Transferor Company; (d) The investment resulted in

inflow of foreign exchange into the country and hence had no adverse

impact on the foreign exchange reserves of the country either; and (e)

This investment, if anything, was beneficial both to the shareholders and

the Transferor company.

9. On March 29, 2012, the Petitioner Companies filed an additional

affidavit clarifying the background of the shareholders whose shares had

been bought back by the Transferor Company. The Petitioner

Companies have also stated that the Reserve Bank of India was duly

informed of the allotment of 93,906 equity shares and being satisfied

with the Transferor Company's compliance with laws and regulations,

had accordingly allotted the Unique Identification Number (UIN) to it.

The Company further submitted that the essential concern before this

court was whether the interests of the shareholders, debtors and general

public was not adversely effected. The lower pricing given to a person

who was a shareholder in the past but is no more a shareholder therefore

is not a matter of concern before this Court.

10. The Regional Director has thereupon filed an additional

representation by way of an Affidavit dated April 26, 2012 wherein he

has stated that since the Company has stated that filings have been with

the Reserve Bank of India for the investment made by foreign

companies, the views of the Reserve Bank of India may be called. The

Regional Director has clearly stated that he has nothing further to add in

the matter.

11. Notice was also issued to the standing counsel of the Reserve

Bank of India on July 05, 2012. The standing counsel for the Reserve

Bank of India appeared and submitted that the Transferor Company had

completed all filings and undertaken all compliances required under the

Foreign Exchange Management Act for issuance of shares to non-

resident shareholders. He further submitted that apart from the above,

the Reserve Bank of India had no further role in the matter and did not

have any objection to the proposed merger.

12. On perusal of the affidavit dated March 28, 2012 filed by the

Petitioner Companies, it is seen that it is clearly stated that the

Transferor Company has not received any objections or notices from the

RBI or any other authority regarding any non-compliance in the

processes followed by it.

13. No objection has been received against the Scheme from any

other party. In this regard, Mr Gyanendra Kumar, learned counsel for

the Transferor Company has filed an affidavit dated January 20, 2012

confirming that neither the Petitioner Companies nor the advocate has

received any notice from any person opposing the Petition pursuant to

the citations published in the newspapers.

14. Mr.Rajiv Bahl, Advocate for Official Liquidator and

Mr.K.S.Pradhan, Dy. Registrar of Companies on behalf of Regional

Director (North) who are present in Court today have not raised any

further objections in sanctioning the Scheme.

15. In view of the approval accorded by the Shareholders of the

Petitioner Companies, Affidavits/ Report filed by the Regional Director

(Northern Region) and the Official Liquidator attached with this Court

to the proposed Scheme, and the reply affidavit filed by Petitioner

Companies on March 05, 2012 and additional affidavit filed on March

29, 2012, there appears to be no impediment to the grant of sanction to

the Scheme. Consequently sanction is hereby granted to the Scheme

under Section 391 and 394 of the Act. The Petitioner Companies will

comply with the statutory requirements in accordance with law.

Certified copy of the order be filed with the Registrar of Companies

within thirty days from receipt of the same. In terms of the provisions

of Section 391 and 394 of the Act and in terms of the Scheme, the whole

or part of the undertakings, all properties, rights and powers of the

Transferor Company be transferred to and vest in the Transferee

Company without any further act or deed. Similarly, in terms of the

Scheme, all the liabilities and duties of the Transferor Company be

transferred to the Transferee company without any further act or deed.

Upon the Scheme coming into effect the Transferor Company shall

stand dissolved without winding up. It is, however, clarified that this

order will not be construed as an order granting exemption from

payment of stamp duty or taxes or any other charges, if payable in

accordance with any law; or permission/ compliance with any other

requirement which may be specifically required under any law.

16. Learned Counsel for the Petitioners states that Petitioner

Companies would voluntarily deposit a sum of Rs. 1,00,000/- with the

Common Pool fund of the Official Liquidator within three weeks from

today. The statement is accepted.

17. The Petition is allowed in the above terms.

Order Dasti.

INDERMEET KAUR, J SEPTEMBER 11 , 2012 nandan